Citation Nr: 0303537
Decision Date: 02/28/03 Archive Date: 03/05/03
DOCKET NO. 97-33 668A ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased rating for post operative
residuals of a medial meniscectomy of the left knee,
currently evaluated as 30 percent disabling.
2. Entitlement to an increased rating for arthritis of the
left knee, currently evaluated as 10 percent disabling.
3. Entitlement to a compensable rating for post operative
scarring on the left knee.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Neil T. Werner, Counsel
INTRODUCTION
The veteran served on active duty from July 1963 to July
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1997 decision of the Atlanta,
George, Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied a claim for a rating in excess of
10 percent for post operative residuals of a meniscectomy of
the left knee with degenerative joint disease. In September
1998, the Board remanded the veteran's appeal for further
evidentiary development. In June 1999, the RO re-
characterized the veteran's service connected left knee
disorder as follows: post operative residuals of a medial
meniscectomy of the left knee, arthritis of the left knee,
and post operative scarring on the left knee. The RO rated
the post operative residuals of a medial meniscectomy as 10
percent disabling, the arthritis as 10 percent disabling, and
the post operative scarring as noncompensable. In October
1999, the veteran moved and his claims' file was transferred
to the RO in Montgomery, Alabama. In November 2001, the
Board once again remanded the veteran's appeal for further
evidentiary development. In September 2002, the RO granted
the veteran an increased, 30 percent, rating for the post
operative residuals of a medial meniscectomy.
REMAND
The Board notes that the appeal was remanded for the second
time in November 2001, in part, to obtain all treatment
records, not yet associated with the record, held by the
Atlanta VA medical center (VAMC) and the Social Security
Administration. See November 2001 Remand, p. 5.
Specifically, the Board's November 2001 remand noted that the
veteran's wife, in an August 2001 written statement, notified
VA that the veteran was in receipt of SSA disability benefits
because of service connected left knee problems. See
November 2001 Remand, pp. 3-4. Similarly, the Board's
November 2001 remand noted that the veteran testified, at his
August 2001 video hearing, that he saw a physician at the
Atlanta VAMC every three to four months for treatment of his
left knee disabilities. Id. However, neither requests for
the SSA records nor post 1998 VA treatment records from the
Atlanta VAMC appeared in the record. Id.
Similarly, given the argument made at the veteran's August
2001 video hearing (i.e., his lost his job of 27 years with
the telephone company because his left knee disorder
interfered with his ability to climb telephone polls), the
appeal was remanded so that the RO could give consideration
to the potential application of 38 C.F.R. § 3.321(b)(1). See
November 2001 Remand, p. 4.
However, while a review of the post-remand record shows that
the RO requested and obtained treatment records from the
Atlanta VAMC, dated from March 1999 and September 2001, the
record on appeal fails to show that the RO ever contact the
SSA to obtain copies of the veteran's records, considered the
potential application of 38 C.F.R. § 3.321(b)(1), or
requested all post 1998 treatment records from the Atlanta
VAMC.
Tellingly, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA) provides that VA's duty to
assist includes making reasonable efforts to obtain relevant
records (including private records) that the claimant
adequately identifies to the Secretary and authorizes the
Secretary to obtain. 38 U.S.C.A. § 5103A(b) (West 2002). As
to the search for SSA records, VA is obligated to continue
trying to obtain evidence from a Federal department or agency
"unless it is reasonably certain that such records do not
exist or that further efforts to obtain those records would
be futile. 38 U.S.C. § 5103A(b)(3) (West 2002). In
addition, recently amended regulations provide that "[i]f
further evidence, clarification of the evidence, correction
of a procedural defect, or any other action is essential for
a proper appellate decision, a Board Member or panel of
Members may: (1) Remand the case to the agency of original
jurisdiction, specifying the action to be undertaken; or (2)
Direct Board personnel to undertake the action essential for
a proper appellate decision." (Emphasis Added). 38 C.F.R.
§ 19.9 (2002). Furthermore, the Court in Stegall v. West,
11 Vet. App. 268 (1998), held that, where the remand orders
of the Board are not satisfied, the Board itself errs in
failing to ensure compliance.
Accordingly, given the RO's failure to carryout the
development requested by the Board in its November 2001
remand, the Board must once again remand the case so that the
RO may fulfill its duty to assist by attempting to obtain the
identified records and consider the potential application of
38 C.F.R. § 3.321(b)(1). See 38 U.S.C.A. § 5103A(b) (West
2002); 38 C.F.R. § 19.9 (2002); Stegall v. West,
11 Vet. App. 268 (1998).
Lastly, the Board notes that the schedular criteria by which
disease and injury to the skin are rated changed during the
pendency of the veteran's appeal to the Board. See 67 Fed.
Reg. 49596-49599 (July 31, 2002) (effective Aug. 30, 2002).
Therefore, on remand, adjudication of the claim for a
compensable rating for post operative scarring on the left
knee must also include consideration of both the old and the
new criteria. Karnas v. Derwinski, 1 Vet. App. 308 (1991).
This rule of adjudication requires that the criteria most
favorable to the veteran's claim be used. Id.
However, the Board notes that neither the July 2002 VA skin
examination nor any other medical evidence found in the
record provide adequate information for rating the post
operative scar under the revised rating criteria for skin
disorders. Therefore, on remand, the RO should arrange for
another examination. And, following the examination, the RO
must readjuicate the claim considering both the old and the
new rating criteria. Id.
As a final point, the Board emphasizes that the fact that the
Board has identified specific actions to be accomplished on
remand does not relieve the RO of the responsibility to
ensure that the VCAA has fully been complied with. Hence, in
addition to the actions requested above, the RO should also
undertake any other development and/or notification action
deemed warranted by the VCAA.
Accordingly, this matter is hereby REMANDED to the RO for the
following actions:
1. The RO should review the claims
folder and ensure that all notification
and development required by the Veterans
Claims Assistance Act of 2000, Pub. L.
No. 106-475, is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (codified as
amended at 38 U.S.C. §§ 5102, 5103,
5103A, and 5107) are fully satisfied.
2. The veteran should be notified that
he is free to submit any pertinent
medical or other records in his
possession, and the RO should afford him
the opportunity to do so before arranging
for him to undergo examination.
3. As part of the duty to assist, the RO
should undertake all necessary
development to obtain and associate with
the record the following records.
a. All post January 1998 to March
1999 and all post September 2001
treatment records held by the
Atlanta VAMC in addition to any
other pertinent medical records from
any other source(s) or facility(ies)
identified by the veteran.
b. All records on file with the
Social Security Administration.
c. If any requested records are not
available, or the search for such
records otherwise yields negative
results, that fact should be noted
in the claims' file, and the veteran
and his representative should be so
notified.
4. As part of the development undertaken
to comply with the new rating criteria,
the RO should schedule the veteran for a
dermatological examination. A copy of
the appointment notice(s) sent to the
veteran should be associated with the
file. All necessary testing should be
conducted. The examiner must review the
entire claims folder.
a. Next, the dermatologist should
provide an opinion as to the following:
i. The exact location and size of
the post operative scar of the left
knee caused by the surgery.
ii. Provide an opinion as to
whether the scar is a "deep scar"
or caused loss of motion of either
the left knee covers an (i) area or
areas exceeding 144 square inches
(929 sq. cm.), (ii) area or areas
exceeding 72 square inches (465 sq.
cm.), (iii) area or areas exceeding
12 square inches (77 sq. cm.), or
(v) area or areas exceeding 6 square
inches (39 sq. cm.).
Note. A deep scar is one associated
with underlying soft tissue damage.
iii. Provide an opinion as to
whether the scarring is superficial,
poorly nourished, and has repeated
ulceration; is tender, and/or
painful on objective demonstration;
is superficial and unstable (no
underlying soft tissue damage but
there is frequent loss of covering
skin over the scar); is superficial
and painful and/or causes additional
loss in range of motion of the left
hip, knee, or ankle.
b. If any of the specifically enumerated
adverse symptomatology is not present,
the examiner must say so.
c. Photographs of the scarring should be
taken.
d. All findings and opinions should be
set forth in detail and reconciled with
all other opinions of record, including
those of the July 2002 VA skin examiner
e. A typewritten report of examination
must be associated with the record and
must include all examination findings,
along with the complete rationale for
each opinion expressed and conclusion
reached.
5. If, and only if, the veteran alleges a
worsening of his service connected left
knee orthopedic disabilities or medical
records obtained by the RO show a
worsening of his service connected left
knee orthopedic disabilities since the
time of the last examination, the RO
should schedule the veteran for an
orthopedic examination.
6. To help avoid a future remand, the RO
must ensure that the examination report
complies with the instructions set out
above and that all requested development
has been completed in compliance with
this REMAND. If any action is not
undertaken, or is taken in a deficient
manner, appropriate corrective action
should be undertaken. See Stegall v.
West, 11 Vet. App. 268 (1998).
7. The RO should take adjudicatory
action and such adjudication should
include consideration of the Veterans
Claims Assistance Act of 2000, 38 C.F.R.
§ 3.321(b)(1), old and new 38 C.F.R.
§ 4.118, Diagnostic Codes 7803, 7804, and
7805, and 38 C.F.R. § 3.321(b)(1). If
any benefit sought remains denied, a
supplemental statement of the case (SSOC)
should be issued. If the RO concluded
that the criteria for submission for
extra-schedular consideration pursuant to
38 C.F.R. § 3.321(b)(1) to the Directory
of Compensation and Pension are not met,
the SSOC must say so as well as the
reasons and bases for that decision.
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folder should
be returned to the Board for further appellate review. No
action is required by the veteran until he receives further
notice, but he may furnish additional evidence and argument
while the case is in remand status. Kutscherousky v. West,
12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109
(1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
The purpose of this remand is to comply with governing
adjudicative procedures. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition of
this appeal.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
LAWRENCE M. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).